Atkinson v. Smothers
| Decision Date | 12 June 1956 |
| Docket Number | No. 29271,29271 |
| Parties | John ATKINSON (Plaintiff), Respondent, v. Carrie SMOTHERS (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
J. Grant Frye, Cape Girardeau, for appellant.
Limbaugh & Limbaugh, Cape Girardeau, for respondent. (Appearing only on appeal.)
In this case tried before the court the defendant appeals from the judgment awarding plaintiff possession of certain real estate and $80 as rent, and the dismissal of her counterclaim.
Plaintiff and defendant entered into a written contract on April 21, 1953, wherein plaintiff agreed to sell to defendant a lot in Cape Girardeau, Missouri, with improvements thereon. The sale price was $1,789.16, $10 of which was paid when the contract was executed, and the balance of $1,779.16, with interest at six per cent per annum, was payable in equal monthly installments of $10 on the twenty-first day of each month. The contract provided that time shall be of the essence 'of this real estate contract', but the buyer, defendant, was granted grace period, the seller had the option to declare the contract . Upon full payment of the purchase price, the seller was obligated to convey title to buyer by warranty deed.
Plaintiff's amended petition alleged, in substance, the execution of the contract; that from January, 1954, to the time of filing of the amended petition on October 21, 1954, defendant had failed and refused to pay the monthly installments, by reason of which the contract was 'null and void, and that the defendant holds the said property as a tenant at will of the plaintiff'; that defendant owed plaintiff 'as rent on the property after contract had become null and void, the sum of $95, to and including October 21, 1954'. Prayer was for possession of the premises and $95 'back rent'.
Defendant filed an answer and counterclaim. She admitted that plaintiff was legal title holder of the property; admitted the execution of the written contract; and that on June 1, 1954, she was six months delinquent in her payments thereunder. Although defendant here contends the purpose of the counterclaim is to specifically enforce an oral contract for the sale of real estate, the real object of the pleading is to establish by judicial decree the existence of an oral contract and the rights of the parties thereunder. The counterclaim alleges a modification of the written contract by parol agreement in April, 1954; that such contract was modified on two subsequent occasions. The final parol contract alleged to have been entered into in June, 1954, provided that the delinquent payments of defendant, in the amount of $60, were to be taken up by promissory note defendant was to give to plaintiff, and the balance of the purchase price plus the cost of certain improvements and repairs made by plaintiff was to be paid in equal monthly installments of $25.
According to the testimony of plaintiff's agent, O. E. Damron, payments under the contract were made to him. He stated that defendant had paid one-half of the January, 1954, installment, but subsequent to that time nothing was paid to Damron. He had sent defendant six notices of her delinquencies, two of which were returned, and in the last notice Damron informed defendant 'the contract was null and void'.
Plaintiff testified that in March or April, 1954, he received a notice from the city health officer to connect the property with the sewer system. He concluded that inasmuch as he was required to make the sewer connection, he would also build a 'couple rooms on the east side'. At that time defendant was in default, and plaintiff wanted possession. He emphatically denied that any repairs or improvements were made pursuant to an oral agreement. After plaintiff had expended over $2,600 'more on the place' in making the repairs and improvements, he did tell the defendant that if she would make a payment of $200, he would take a new contract under which the defendant could pay the balance of the original purchase price and the cost of the repairs and improvements in monthly installments of $25 each, but the $20 was not forthcoming. Plaintiff denied that he agreed to accept a note for $60 to take care of defendant's delinquent payments under the written contract, and denied that he agreed to accept $25 a month except on condition that the $200 each payment be first made.
Defendant's version of the transaction was in accord with her pleaded claim. She stated that in March or April, 1954, the parties agreed orally that plaintiff would connect the dwelling with the sewer system, furnish all labor and materials to place a better foundation under the house, enlarge it to four rooms, install plumbing, and make certain repairs; that when completed a new contract would be executed to include the balance due under the oral contract, and cost of such improvements and repairs, and defendant would be required to pay to plaintiff $25 per month.
The third and final contract was to the effect that defendant agreed to accept a note from plaintiff for $60 due on the written contract to July, 1954, and the balance of the purchase price plus cost of improvements made by plaintiff was to be discharged in equal monthly payments of $25.
This being a nonjury case, we are required to review it upon both the law and the evidence. We have no right to set aside the judgment unless it is clearly erroneous, and we must accord due regard to the opportunity of the trial judge to judge as to the credibility of the witnesses. Section 510.310 RSMo 1949, V.A.M.S.; Scott v. Kempland, Mo.Sup., 264 S.W.2d 349; Fulton v. City of Lockwood, Mo.Sup., 269 S.W.2d 1; Kraft v. Armentrout, Mo.App., 275 S.W.2d 402.
A preliminary question of jurisdiction is raised by defendant's motion to transfer to the Supreme Court on the ground that title to real estate is involved, Constitution, art. V, Sec. 3, V.A.M.S., in that defendant has filed a counterclaim for specific performance of a contract for the sale of realty. If defendant's counterclaim is to be so construed the Court of Appeals has no jurisdiction. Herzog v. Ross, Mo.App., 192 S.W.2d 23, appeal transferred 355 Mo. 406, 196 S.W.2d 268, 167 A.L.R. 407; Barnes v. Stone, 198 Mo. 471, 95 S.W. 915; State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878; Tant v. Gee, 236 Mo.App. 133, 146 S.W.2d 61, transferred 348 Mo. 633, 154 S.W.2d 745. Obviously defendant in this proceeding was seeking to judicially establish the existence and the terms of an oral installment contract for the purchase of the realty and to obtain a judicial declaration of the rights and obligations of the parties thereunder. An effort to obtain specific performance years prior to the time specified for execution of the deed would have been wholly premature. 81 C.J.S., Specific Performance, Sec. 116, p. 650; Gilleland v. Welch, 199 Ga. 341, 34 S.E.2d 517. The fact that she prayed for 'specific performance of the contract as amended' did not affect or change the real purpose of the counterclaim. Defendant asserted no title to the land itself, no right to a present conveyance of the land and no interest in the land as such. Neither the amended petition, answer, nor reply asked that the court determine title to real estate. Had defendant prevailed, plaintiff's title would not have been divested by the judgment. Plaintiff's title could be affected only by a subsequent proceeding, brought after the final accrual of a right to the conveyance, and then only as an indirect and not as a direct result of an instant judgment and decree. See Pursley v. Pursley, Mo.Sup., 213 S.W.2d 291, appeal transferred, Mo.Sup., 215 S.W.2d 302; Weil v. Richardson, 320 Mo. 310, 7 S.W.2d 348, transferring cause to Court of Appeals, 224 Mo.App. 990, 24 S.W.2d 175. The judgment sought or rendered must affect or operate upon the title, i. e., determine title in some measure or degree adversely to one litigant, and in favor of another. Albi v. Reed, Mo.Sup., 281 S.W.2d 882. In the instant case the judgment (for possession of the land and for money) did not affect of operate upon the title, determine or directly involve title in any manner or degree adversely to or in favor of plaintiff aor defendant. The Court of Appeals has jurisdiction...
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